Mike Pence Testifies 33:24

Hello and welcome back to another episode of Prosecuting Donald Trump. Well, despite Trump's efforts to stop it, Mike Pence testified before the January 6th grand jury, actually in record time.

So, should that make Trump nervous? That's going to be the first of our topics. And I'm here with Mary McCord, who has actually written about this for the MSNBC Legal Blog. So, welcome, Mary. Good to be here, as always, Andrew. So, that's going to be our first topic. And then we're going to talk about two other things. One is...

a pretty outlandish letter, just to let you know what I think, that was written by one of Trump's attorneys to Congress, basically saying, hey, we can't control DOJ, you should. And then finally, we're going to take...

a crack at what happened last week in what I call the oxymoron, the civil rape trial that is ongoing in New York against Donald Trump. And we'll talk a little bit about what we expect might happen this week, as well as some recent shenanigans and letters that happened over the weekend in the E. Jean Carroll case. So with that, Mary, why don't we talk about

Mike Pence and your take on it. So I think maybe the first thing before we get to your much more erudite position that I was reading about from you, why don't we start with the issue of

What does this mean in terms of reading the tea leaves in terms of where Jack Smith is if he has put Mike Pence in? I know there are a lot of people on cable news talking about that issue, and I wanted to get your take on what do you think this means in terms of Jack and whether he'll be coming to a decision quickly?

This is so funny because, you know, every single time there's any development, these are the questions that get asked. What does this mean for the timing? When's it going to be indicted? Are we close to the end? And, you know, I resist always answering that because having been in the position of making charging decisions in cases nowhere near as –

high profile as this, yet high profile alone. When I was in the government, you know, I always just kind of had to chuckle at all the people prognosticating about timing when, you know, we had all of the various internal

checks and, you know, running things up the flagpole and everything else that we had to do even after we'd made a charging decision. You know, Mary, it's so funny you said that because I was thinking about the last experience I had that was similar to what you're describing was being in the Mueller investigation. And of course, for 22 months, I was on the other side of this, watching various friends and colleagues, like,

Speculate. Like you and me now, speculating. And, you know, it's really interesting because some were wildly off. But I remember a couple people I thought were really good at...

figuring out from the little clues where we were and what was going to happen. So it's funny because now we're both on the outside, but, you know, we've been inside. By the way, and since it's just you and me and no one else is listening, why don't you, I'm going to press you for your prediction. You know, I don't necessarily think this was sort of a final decision.

effort getting Pence in the grand jury. And that means, okay, everything else is done. And the reason is because this is actually taking some time coming, right? There was an effort to just cooperatively get

Mike Pence to talk to the government that happened quite a while ago. And when that failed, then there was the subpoena. Then there was litigation about that subpoena. And the government decided to go ahead and take that on up to the chief judge when Pence asserted the speech or debate clause privilege and when Trump asserted executive privilege.

So it's not like he just made this decision last week to seek Pence's testimony in the grand jury and Pence went in and that signals somehow we're close to the end. So this has been something that's been being litigated over the last, gosh, I guess maybe now at this point, a couple of months. And

along with a lot of other litigation related to Jack Smith's investigation. So it seemed to happen really in a similar time period as a number of other steps. In that same time period, we've heard even more recently than the initial efforts to get Mike Pence before the grand jury, we've learned about new paths that the investigation is taking, including into

the fundraising based on election fraud, fundraising after the 2020 election, where it was promised that the money was going to be used for challenging the election, recounts, audits, etc. And it appears that the money was not used that way. So we're seeing new lines of inquiry at least come to the public's attention at the same time this is happening.

So I don't necessarily think we're at the end. And then the other thing I would say... Can I interrupt you for a second on that? Because I think that's a super interesting point about the fact that there are these multiple prongs. But I was wondering if you thought that the fraud prong...

would necessarily be charged along with what I'll call the election interference prongs, what happened in the states, the fake electors, the replacement of people at DOJ, the pressure on Mike Pence, because those analytically could be distinct, although having been a fraud prosecutor for

you kind of would want them together because it's such a nice story to say, and by the way, if you're wondering, another reason that he might be doing this is not just to cling to power, but even if he thought that he would lose that debate and that he wouldn't

actually be able to be successful with this sort of Hail Mary, he was going to make a lot of money off of it. So that it's sort of a nice extra piece. And it also has this nice piece because the victims of that fraud are

His supporters. Exactly.

Or maybe more realistically, but still, I'm not sure what I think on this, which is whether it might be charged later. In other words, if this was going to take a while, whether you might do something called a superseding indictment, which just means adding new charges to an existing indictment. I think that's entirely possible because it's also likely, I think, that if there are charges brought with respect to this

Yeah, good point.

Will this move the needle with any of his real supporters? Will it make them think any differently about him? And it seems to me that for some of them, no. In fact, it'll have the opposite result. They'll just dig in and want to defend Trump and feel like he's being persecuted. But this move

investigation that we were just talking about into whether his own supporters were defrauded by lies about how the money they contributed would be used, that gets to them in their pocketbooks. That makes them the victims of fraud if, in fact, there's evidence to prove that. And that might make them feel a little bit different. Yeah. And, you know, the way I look at it is

There are probably people in a bell curve, and there are some people who will never, ever, ever change their views, and they'll think it's all fake news. And for whatever reason, almost like a religious cult, they're just not going to hear anything. But there are going to be some people, and the question is just how many, who, you know what, the facts will matter. As former President Obama used to say, well, you know what, there were enough people to vote for President Obama, and they switched and voted and elected

former President Trump. People do change. You're really playing. Exactly. So, Mary, you've written about Mike Pence and the sort of import of his testimony to you. And I encourage everyone to read it. But what is it that what's the point you were trying to make for readers? Well, you know, we were just I was just alluding to victims of fraud in fundraising. And I think something we haven't spent enough time thinking about is that

Mike Pence, quite arguably, was the victim of an intended crime of violence, one that I think there's strong evidence to show that former President Trump actually encouraged and made efforts to persuade others to undertake with the intent that that violent crime be undertaken. And I know that sounds somewhat dramatic, but if we strip away all of the rest of the insurrection—

and just focus on Trump's conduct vis-a-vis Mike Pence, you really do see this effort, notwithstanding that Trump was told repeatedly by Pence and by his own lawyers and advisors that the idea that Pence had the authority unilaterally to reject

the Electoral College ballots from the swing states or to send those ballots back to the swing states and pause the counting of the Electoral College votes. He was told repeatedly that, no, Mike Pence did not have that authority. And notwithstanding that, he went out day after day, January 4th, January 5th, January 6th, and told the crowd, Mike Pence can do this, right?

Mike Pence has the authority to make this right. It's all going to be up to Mike Pence. Mike Pence has to have the courage to do that.

And, you know, the night of January 5th, the New York Times published an article saying that Mike Pence and and Trump's advisers had told Trump the previous day that Pence didn't have that authority. And Trump came out and you've raised this before, Andrew. Trump came out after that New York Times article and said after speaking to Mike Pence and said that was false news, that was fake news.

Pence is completely on board with me. He's got the authority to do this. On the morning of January 6th, early morning hours, he starts tweeting that Mike Pence alone really can ensure that what he thought the will of the people would be seen. He said, if Vice President Mike Pence comes through for us, we will win the presidency. Many states want to decertify the mistake they made, and Mike can send it back.

You know, by 8 a.m. in the morning, he was saying the same thing. Do this, Mike. It's time for courage. Down on the ellipse, after Giuliani and Eastman both said that Pence had the authority to do it, that's when, you know, Trump came on hard, came into the crowd, said, I hope Mike has the courage to do what he has to do, and then told the crowd, we fight. We fight like hell. If you don't fight like hell, you're not going to have a country anymore. He goes back to the White House,

The crowd goes down, attacks the Capitol. We know from testimony before the House Select Committee that Trump was watching that attack on television, in the dining room, knew what was happening, knew that Mike Pence had been evacuated from the Senate floor, knew that Mike Pence, the crowd had nearly reached him, and nevertheless tweeted that Mike Pence did not have the courage to do what needed to be done that day.

So I think if we really look at the evidence here, there's a lot to say that President Trump, former President Trump, actually tried to encourage, persuade others to engage in a crime of violence against his own vice president. And thinking of Mike Pence as a victim here is another way that I think it's important for people to take a look at what happened on January 6th. Yeah, I love that. I mean, because what you're saying is,

Of course, there's a pressure campaign on Mike Pence. But more than that, don't consider the violence at the Capitol alone. You should think about it in terms of the person of Mike Pence. Mary, do you think that legally it would be enough to show that this was a reasonably foreseeable attack?

that people would attack Mike Pence or that it was reckless disregarded? Do you think that the government, if they charged in the way that you're suggesting may be possible, that they'd have to show that...

he intended, that this was sort of a knowing and intentional action. In the same way that if someone broke into your house and hit you and you were charging battery, you would have to show that specific crime. So the actual crime of solicitation of a crime of violence does require intent. So the government would have to show that

that Trump had the intent that the attackers commit a crime of violence against the vice president, and that under circumstances strongly corroborative of that intent, that Trump solicited, commanded, induced, or otherwise endeavored to persuade the attackers to do so. And that's why I kind of went through just a small bit of the evidence, those circumstances that would be strongly corroborative of his intent to show what Trump wanted

had to have known as he was watching the attackers attack the Capitol and what he continued to say and do during the course of that time. I'm not saying that I think this will ever be charged or get to a jury, but there's certainly strong evidence of it. And I think it's important because again,

you know, there's just so much. And we talk a lot about the insurrection, the attempt to undermine democracy, and that is appropriate and clearly so significant. But there's a person here who could have been injured or killed. And I think that the former president bears responsibility for that. I will also add that charge does not require the crime of violence to actually have come to fruition, to have actually occurred, just that it was intended. Yeah. And then there is, although I don't

know that it would also be charged, but there is this thing called Pinkerton liability, where if you've sort of put in motion crime A, and as a reasonable foreseeable consequence, the people doing crime A do crime B, then there's a form of liability for that. But all of this is super, as I like to say, super in the weeds, which is why the nickname I thought

instead of prosecuting Donald Trump, that at least there could be a semicolon because it could also be two nerds discuss legal issues. But Mary, just to move us on, I thought the other thing that was just fascinating this week was this letter to Congress by Trump's attorneys saying,

that, of course, I've never seen anything like this because we're in completely uncharted territory. But I'm going to give you my take, and then you can pick it apart. I viewed this letter as, of course, not anything that is legally required. It had no legal significance. It had no effect on a potential indictment. It wouldn't play out in court. I took this as a roadmap for...

sort of MAGA Republicans who are aligned with the former president as to essentially, here are our talking points. Here's what you should be doing. Just to bring people up to speed, the letter basically says, hey, factually,

the former president didn't really do the packing of the documents himself. And it's really the National Archives fault because they didn't really take charge of this. And so all of this stuff got sort of swept up and taken to Mar-a-Lago. And I can't believe you're making a mountain out of a molehill because it's no different than President Biden or former President Mike Pence. So that sort of

step one. And then because you're making a mountain out of the molehill, you should really give this to the DNI. That is the Director of National Intelligence, Avril Haines, to look at, who, by the way, has no criminal authority, which is really what their code for that. The chances that Avril Haines is

is going to take over the quote criminal case is somewhere, I would love to say between zero and slim to none, but slim would-- - It's too much. - Is overestimating it. - It's too much. Yeah, zero. - Exactly, it's zero to zero. - They wouldn't even have the authority under law, right? I mean, investigations of possible crimes is the purview of the FBI, not the director of national intelligence. - Yeah, but Mary, let's not let the law get in our way of a good talking point letter.

So the idea that this is like, you know, we don't like what DOJ is doing. And you know what? Now that former President Trump is no longer President Trump, we have to do something. And our only lever here is Republicans

in Congress and, frankly, Republicans in the House because, you know, Mitch McConnell has sort of shown no love lost for the former president. So this is, to me, just sort of a non-starter even on the House. It seemed like just a sort of strained talking point. It did, I have to say, just thinking back to Special Counsel Mueller,

It just tells you how much we were dealing with that this is an effort by the former president to use whatever extra legal pressures he had. But when he was president, he had all of those levers, including a certain fellow named Bill Barr and the consequences.

constitutional power of granting pardons and dangling pardons and tweeting to get at jurors. So I don't know if you had a more charitable take on the letter in terms of what it's doing or whether I'm giving it short shrift in your view as to any particular merit there is to the letter.

No, I mean, honestly, I think there's other things that make it even more outrageous than the fact that it really seems to have been just setting up a, you know, talking points and potential defenses to get them out there to try to infect the public and also to to put pressure on Congress. But, you know, let's just be clear what what this letter says is DOJ should be ordered to stand down. That's what it says.

And the intelligence community should instead conduct an appropriate investigation and provide a full report to the committee. Now, for Congress, Congress doesn't have the authority to say to DOJ, stop investigating. If Congress wants to decriminalize the mishandling of classified information, Congress can decriminalize the mishandling of classified information. But I don't see that happening. Exactly. Just in case everyone's having a heart attack out there, that's not going to happen.

because you know what that requires? That requires a vote of the Senate. That's right. And I don't even think Trump

Trump supporters on the house side on the intelligence committee would be so foolish as to do that. I mean, honestly, it's, it's such a, that's such a massive thing. So that's not going to happen. And otherwise Congress has no authority to just step in and say, you know, you need to stop. I think one thing, in addition to what you mentioned that the lawyers are, are trying to do here is the same thing they did, uh,

with Alvin Bragg, which is to, you know, go to Congress, in that case, go to Jim Jordan, head of the Judiciary Committee, and saying, this isn't right. You should look into this. And then, of course, Jim Jordan complied by issuing subpoenas to Bragg and to Pomerantz to try to get, you know, to try to insert some, you know,

muck into the gears of a prosecution to just make it more complicated, to get it, you know, to create a big national issue with respect to Congress's authority to investigate what was perpetrated

portrayed as state overreach, state prosecutorial overreach. So here, I think in many ways, I think what Trump's attorneys are trying to do is the same thing, try to get Congress involved to reach out to try to hold some hearings, haul some people from DOJ up in front of Congress to answer some questions. And I don't know whether

Mike Turner, the chair of HPSI, the House Permanent Select Committee on Intelligence, will oblige by seeking to have hearings. But I certainly know that DOJ, while it does respect the oversight authority of Congress and will report on certain intelligence issues to Congress, it does not give Congress briefings on

Yeah, so I totally agree with that. And one other thing that I thought was interesting, as much as they tried to signal talking points and what's weak about a potential case to try and say, hey, it's no different than President Biden or the former Vice President Mike Pence.

is the fact that they had to focus just on the removal of the documents, but not the retention of the documents. And this has always been a retention case. The issue of sort of, at least from what we know,

There's not a lot of... Retention and possible obstruction, right? Absolutely. But it's all about what happened when the documents were at Mar-a-Lago. Now, there may be unknown evidence about how it got transported, but this is all about the fact that there was this sort of ongoing, willful retention in spite of...

demands by the archives, in spite of demands by the DOJ, in spite of a subpoena by DOJ, and then a search. And in spite of all of that, you have the former president

not turning this back over and not behaving the way that, for instance, his vice president behaved, which is say, this is what we found and here it is, and doing all the things you do when there's inadvertent discovery. You don't sit there and say, they're mine and I declassified it with my head. So to me- And you don't show them to people. Yeah, exactly. So to me, if I am Jack Smith, I'm sitting there going, hey, this is the best you've got. I thought that this is another sort of

It's not even a defense du jour, which we saw when it first happened. This is one where there's just so little as a factual or legal defense. We'll be right back with more of Prosecuting Donald Trump, Mike Pence Testifies.

MSNBC Live Democracy 2024, Saturday, September 7th in Brooklyn, New York. Join your favorite MSNBC hosts at our premier live audience event. Visit msnbc.com slash democracy 2024 to buy your tickets today. Okay, so let's turn to the ongoing case, which is not criminal itself, but certainly has criminal overtones. As we've talked about, this is E. Jean Carroll, who has been

is bringing a civil rape case in terms of her alleged attack by the former president in a department store, a very upscale department store in New York called Bergdorf Goodman, still exists on Fifth Avenue. And we've concluded the first week

And E. Jean Carroll is still on cross-examination. There have been a lot of sort of fireworks. And then over the weekend, there's sort of been two letters or two submissions that have been made to Lewis Kaplan, the federal judge overseeing it,

So the one letter is basically what I call a whining letter. This is Joe Takapina going, judge, judge, stop being so unfair to me. And we'll talk about that. And then the other letter is fascinating to me because the other submission is

by E. Jean Carroll's team, and that is under seal. We know that there's been a filing. We know that the parties last week at the end of the week were talking to the judge, but outside the presence of the jury, outside the presence of the public,

And some sort of submission with a declaration was made. And we know that just because you can look at the docket sheet. That is, when a filing is made, you can sort of see what was filed, but you can't, when it's under CLC, the content. So there's just a lot of speculation as to what that is. I'm going to give you my two cents, since we're in the sort of what educated speculation is.

I don't know what the precise issue is, but it reads to me like some question or issue relating to the jury or a particular juror. So for instance, if a juror

read something that they shouldn't have, if they saw something from Truth Social. All of those types of issues could be the subject of something happening ex parte. And you also would want to do that that way because if you have a problem with one juror, you don't want it to infect the other jurors, whatever it is.

again, this is rank speculation. I totally agree with that because anything that's going to pertain to a ruling in court generally, otherwise, is going to need to be a public filing. But not only with respect to jurors, but also potential witnesses, right? If you had, that's another thing I would say, that you're going to go ex parte to the judge if you're

an attorney and you have heard something that might impact a juror or jurors or your witnesses where you fear for the safety of your witness or your juror, or you have some other kind of issue that is not appropriate for public filing or even with sharing with the other party initially. So, I mean, we're just obviously rank speculating here, but you know, it is unusual to be ex parte unless you have these kinds of circumstances. Um,

On the public letter that was filed Monday morning, this, I agree, this is whining. This is Joe Takapina coming in saying, yeah, yeah.

Saying, Your Honor, you were not fair to me. You cut off my cross-examination. You made plaintiff look good and defendant look bad. And we think there should be a mistrial. Now, I just want to be clear. That is basically accusing the judge of being biased against the defendant and in favor of the plaintiff. And the Supreme Court has been very clear for decades that judicial rulings

alone almost never constitute a valid, you know, motion for the removal of the judge. Because let's be clear here, he's making this as a mistrial motion. But I think what he really wants is to get this judge off of this case. And the Supreme Court's made clear, like, just not

liking one party's position, expressing impatience, dissatisfaction, annoyance. These are things that happen in trials. They don't mean a judge can't conduct the trial fairly and a jury can't make a decision based on impartiality. These are just things that aren't the basis for removal of a judge or for a mistrial. So that is a long shot. Especially Lewis Kaplan. I mean, I

Just so everyone knows, Lewis Kaplan is such a respected federal judge, super, super smart.

So it would take a lot to find that he engaged in some kind of impropriety. But, you know, I have to think what Joe Takapina is also thinking is, you know what, there's no real downside here. It's like, you know, he's calling me out on all this stuff. So maybe this is a little bit of a brushback. He gives me a little bit more leeway if he's concerned about his appellate record. It's sort of like a no harm, no foul. It's sort of like, might as well try. I agree. But

I don't know Judge Kaplan all that well. I have appeared before him on various matters, and I just don't see... He has such backbone and integrity. He knows who Joe Tecopina is. He knows what this letter is. And I think he's going to just be like, "You know what? You can keep sending these to me, and I'm still going to rule exactly the way I think is appropriate. And you know what?

If the Second Circuit, the Court of Appeals later thinks I'm wrong, great, we'll come back and do it again. He's just not going to be cowed by this. And let's just also put this kind of letter in context, which is E.G. Carroll was on cross-examination for a long time last week, and he

Joe Takapita announced that he was only 50% through and that he thought it would take all day Monday, which is really, I won't say overkill because of course she is...

the central witness. But it's hard to say that one, that he, Joe Takapina, has not had a fair opportunity to cross-examine. And also, I have to say, it's not really good lawyering. Sometimes it's like less is more. Yeah, strategically. Exactly. Less is more. And you know what? More is less,

Like, if you don't really sort of make points and you're sitting there just rehashing stuff, in some ways what happens is the witness gets to just tell the story again and again. So anything that the jury might have missed is kind of hammered home on cross. Getting repeated, yeah. So to me, that's the sort of difference between a sort of

A defense lawyer and a sort of B defense lawyer is knowing how to sort of get in and get out and make your points and stick to them as opposed to just this sort of going on and on and on and droning. I would add one more thing to that too, Andrew, that this is a case about sexual assault. And sometimes it can be very, very off-putting to jurors if you really berate the

the victim of an alleged sexual assault, even if you're defending someone who says that a sexual assault didn't happen. You have to assume that jurors have listened to the story. And if you come down super hard on cross-examination of someone who, you know, is testifying that they were a victim of sexual assault, that can really turn off jurors. So just as a strategy, I think it's, you know, it's a risky one. And also just to sort of anticipate what's going to happen this week is...

It's particularly risky because even if they're jurors right now saying, "I don't really know what to believe," one way or the other, you're maybe not turning off some jurors right now. But we anticipate this week that we're going to hear from some of four additional witnesses, two so-called outcry witnesses who were contemporaneously, the same week as the alleged assault, were told by E. Jean Carroll what happened.

So that this isn't the claim that this was all a question of, oh, she only brought this case and made these claims because he was president. You better have to say all those outcry witnesses are lying. It's not just one witness, but all three are lying. And we're also going to hear from two other witnesses who the plaintiff has said that they're going to testify about similar incidents. So

It's a long way of saying this will be a really fascinating week. I don't think it's going to get any better for the former president in many ways. The proof is going to sort of keep adding up in the way that, Mary, when you and I did cases, you sort of thought the first witness, the second witness, that, you know, like they're building blocks. But you knew that there was going to be this avalanche coming. Right. That's right.

And, you know, I don't think it's a slam dunk case by any means because sexual assault cases are never slam dunks. But what we have coming this week could be very significant corroboration for E. Jean Carroll. Absolutely. So I can't wait, Mary, next week when we get to talk about what else happened.

And I'm pretty sure that I don't think we'll have more developments in the Georgia case, but it'll be really interesting to see what's happening with Jack Smith as we go forward. So, Mary, so nice talking to you. Absolutely. See you next week. Thanks so much for listening. We'll be back next week with much more.

The senior producer for this show is Alicia Conley. Our technical director is Bryson Barnes. Janmaris Perez is the associate producer. Aisha Turner is an executive producer. And Rebecca Cutler is the senior vice president for content strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and follow or subscribe to the series.

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